IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA, 

vs. 

THEODORE YOUNG, SR., 

CRIMINAL ACTION 

NO. 05-CR-0056-16 

CIVIL ACTION 

NO. 10-CV-3465 

MEMORANDUM 

STENGEL,J. September iJ.. , 2011 

On May 3, 2007, after a month-long trial. a jury convicted Theodore Young. Sr., of 

three drug-related charges related to his involvement with his son and several others in 

what became known by the government as the "Young Heroin Organization." The Third 

Circuit Court of Appeals affirmed Mr. Young's conviction and sentence. See United 

Stales v. YQung. 339 Fed. Appx. 153 (3d Cir. 2009). He has filed a timely prose motion 

to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. 

The governmenlliled its response. For the reasons thallollow, I will deny the motion in 

its entirety without a hearing. 

I. BACKGROUND 

On February 2, 2005, a federal grand jury returned a thirty-live count indictment 

charging Mr. Young and his son, Teddy Young, along with seventeen others, with a variety 

of drug-related crimes. See Document #1. Those charges included conspiracy to 

distribute one kilogram or more of heroin and to distribute heroin within 1000 feet of a 

school; possession of one hundred grams or more of heroin with intent to distribute; 

possession and distribution of heroin; establishment of drug manufacturing operation; and 

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use of communication devices to further drug activity. Teddy Young was also charged 

with the usc and carrying of a firearm during a drug trat1icking crime. The senior Young 

was specifically charged with three counts: conspiracy to distribute more than one 

kilogram of heroin and to distribute heroin within 1000 feet of a school in violation of 21 

U.S.C. § 846; use of a communication device to further drug trallicking in violation of21 

U.S.C. § 843(b); and possession with intent to distribute heroin in violation of21 U.S.C. § 

84l(a)(l), (b)(l)(C). 

One of the co-defendants died before the return of the indictment. Fitleen orthe 

co-defendants pleaded guilty before trial. The remaining three, including Mr. Young, 

proceeded to trial. At trial, the government proved by overwhelming evidence that from 

November 2000 to June 2002, the defendant and his son were the leaders of a large heroin 

distribution organization known as the Young Heroin Organization. Tt also proved that 

the organization received bulk heroin from several sources including New York City, and 

cut, processed, packaged, and stamped the heroin into "bundles" for resale in the streets of 

Philadelphia. Once bundled, the organization's leaders delivered or had the bundles 

delivered to the various resellers around Philadelphia and its environs, who then sold the 

bundled heroin in the streets. In addition to the father and son, the organization consisted 

of cut house workers, street resellers, and suppliers. The senior Young distributed much 

of his portion of heroin outside of Philadelphia in the Coatesville area. Evidence at trial 

established that the organization distributed at least 24.9 kilograms of heroin during the 

period of the charged conspiracy. 

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On May 2, 2007, after a month-long jury trial, Mr. Young was convicted of all three 

counts charged against him in the indictment. See Document #520. In anticipation of 

sentencing, the Probation Office prepared a pre-sentencing report which calculated Mr. 

Young's offense level at 40 and his criminal history level at 1. Those levels yielded a 

sentencing guideline range of292 to 365 months' incarceration. There was no basis in the 

record for a downward departure from the guideline range. On December 6, 2007, 

however, Mr. Young was sentenced to 144 months' imprisonment, ten years of supervised 

release, and a special assessment of $300, a significant downward variance from the 

guideline range due to his advanced age and poor health. See Document #681. 

Tn his motion, Mr. Young alleges four claims of ineffective assistance of counsel. 

He first claims that counsel's performance was deficient for failing to file a pretrial motion 

to dismiss the indictment for violation ofthe Speedy Trial Act, 18 U.S.C. § 3161. Second, 

he alleges ineffectiveness of counsel for failing to file a motion to dismiss based on a 

constitutional violation of speedy trial under the principals set forth in Barker v. Wingo, 

407 U.S. 5!4 (1972). Mr. Young next alleges that counsel was ineffective during voir dire 

by leaving the defendant in the hallway during jury selection. Finally, Mr. Young alleges 

that counsel was ineffective during trial by failing to object during the government's 

opening statement, by denying him his right to testify, and by the cumulative effect of those 

acts and omissions. 

II. STANDARD OF REVIEW 

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 

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challenging the validity of his sentence. Section 2255 provides, in relevant part, as 

follows: 

A prisoner in custody under sentence of a court established by Act of 

Congress claiming the right to be released upon the ground that the 

sentence was imposed in violation of the Constitution or laws of the 

United States, or that the court was without jurisdiction to impose 

such sentence, or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack, may 

move the court which imposed the sentence to vacate, set aside or 

correct the sentence. 

28 U.S.C. § 2255(a). Thus, Mr. Young is entitled to relief only if he can demonstrate that 

he is in custody in violation of federal law or the Constitution. See United States v. Garth, 

188 F.3d 99, 108 (3d Cir. 1999) (citing Herrera v. Collins, 506 U.S. 390,404 (1993)) 

(federal habeas courts sit to ensure that individuals arc not imprisoned in violation of the 

Constitution, not to review questions of guilt or innocence.) Tn considering this motion, 

the court "must accept the truth of the movant's factual allegations unless they are clearly 

lrivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 

(3d Cir. 2005). 

Mr. Young has filed this motion prose. Prose pleadings are traditionally 

construed quite liberally. However, a prose petitioner is not excused from the duty to 

prove a "set of facts in support of his claim which would entitle him to relief." Haines v. 

!<crncr, 404 U.S. 519, 521 (1972). A prisoner in custody may move the sentencing court 

to "vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or 

laws of the United Slates." 28 U.S.C. § 2255. Section 2255 permits habeas re1ieftor an 

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error of law or fact constituting a "fundamental defect which inherently results in a 

complete miscarriage ofjustice." United States v. Eakman, 378 1'.3d 294, 298 (3d Cir. 

2004) (citing United States v. Addonizio, 442 U.S. 178, 184 (1979)). 

St:~:tion 2255 provides that "[u]nless the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt 

hearing thereon, determine the issues and make findings of fact and conclusions of law 

with respect thereto." 28 U.S.C. * 2255(b). Conversely, a court may dismiss a Section 

2255 motion where the records and tiles show conclusively that the movant is not entitled 

to relief. United States v. Nahodil, 36 1'.3d 323,326 (3d Cir. 1994). 

"Habeas review is an extraordinary remedy and will not be allowed to do service for 

an appeal." Housley v. United States, 523 U.S. 614,621 (1998). Therefore, a habeas 

petitioner is procedurally barred from asserting a claim in a§ 2255 petition that he could 

have, but failed to raise in his direct appeal. See United States v. Frady, 456 U.S. 152, 

165, (1982). Once claims have been procedurally defaulted, the petitioner can only 

overcome the procedural bar by showing "cause" for the default and "actual prejudice" 

from the alleged error or that he is "actually innocent." !d. at 167. "In this context, 

'cause' consists of 'something external to the petitioner, something that cannot be fairly 

attributable to him,' and 'prejudice' means that the alleged error 'worked to [the 

petitioner's] actual and substantial disadvantage."' United States v. Rodriguez, 153 F. 

Supp. 2d 590,594 (E.D. Pa. 2001) (citing Coleman v. Thompson, 501 U.S. 722,753 

(1991) and United States v. Frady, 456 U.S. 152, 170 (1982)). 

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Importantly, however, a defendant need not demonstrate cause and prejudice when 

he raises a claim of ineffective assistance of counsel. See United States v. DeRewal, 10 

F.3d 100, 104 (3d Cir.l993). Ineffective assistance of counsel claims are generally not 

considered on direct appeal and are best brought by the defendant in a collateral attack such 

as this. United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003). Therefore, claims 

properly dismissed as procedurally defaulted because they were not raised on direct appeal 

are appropriately considered in connection with an ineffective assistance of counsel claim. 

Sec DeRewal, 10 F.3d at 104-105. 

III. DISCUSSION 

A defendant seeking relief under§ 2255 on an ineffective assistance of counsel 

claim must show that: (I) counsel's representation fell below an objective standard of 

reasonableness under prevailing professional norms; and (2) the defendant suffered 

prejudice as a result-- meaning, but for counsel's deficient perfOrmance, the result of the 

proceeding would have been different, i.e., the deficiency deprived the defendant of a trial 

whose result is reliable. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing 

Strickland v. Washington, 466 U.S. 668,694 (1984)). Because a§ 2255 petitioner cannot 

prevail unless he satisfies both prongs of the Strickland test, the Third Circuit Court of 

Appeals has recognized that it is often appropriate for a reviewing court to consider the 

second part of the test, the prejudice to the defendant based on the "assumed deficient 

conduct of counsel," first. If the petitioner has not shown that he would have been better 

off if the alleged errors had not been made, it is unnecessary to consider whether his 

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counsel's performance was actually deficient. See McAleese v. Mazurkiewicz, 1 F .3d 

159, 170 (3d Cir. 1993). In Strickland, the Supreme Court advised: 

A court need not determine whether counsel's performance was 

deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies. The object of 

an ineffectiveness claim is not to grade counsel's performance. 

If it is easier to dispose of an ineffectiveness claim on the 

ground of lack of su11icient prejudice, which we expect will 

often be so, that course should be followed. Courts should 

strive to ensure that ineffectiveness claims not become so 

burdensome to defense counsel that the entire criminal justice 

system suffers as a result. 

Strickland, 466 U.S. at 697. 

A court reviewing a claim of ineffective assistance "must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption that, under all the 

circumstances, the challenged action might be considered sound trial strategy." Sistrunk, 

96 F.3d at 670 (citing Strickland, 466 U.S. at 689-690). The Third Circuit has set lc>rth the 

approach district courts must adopt in determining whether a Section 2255 petitioner is 

entitled to a hearing on his ineffective assistance of counsel claims: 

First, we must determine whether the district court considered as true 

all appellant's nonfrivolous factual claims. This step requires that we 

review whether the district court properly found certain allegations 

Crivolous. Second, we must determine whether, on the existing record, 

those claims that are nonfrivolous conclusively fail to show 

ineffective assistance of counsel. To evaluate claims under this 

second step, we must tum to both prongs of the Strickland test. If a 

nonfrivolous claim clearly fails to demonstrate either deficiency of 

counsel's performance or prejudice to the defendant, then the claim 

does not merit a hearing. If on the other hand, a claim, when taken as 

true and evaluated in light of the existing record, states a colorable 

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claim for relief under Strickland, then further factual development in 

the form of a hearing is required. That is, if a nonfrivolous claim 

docs not conclusively fail either prong of the Strickland test, then a 

hearing must be held. 

United Stales v. Dawson, 857 F.2d 923,927-28 (3d Cir. 1988) (emphasis in original). 

A. Failure to File a Motion to Dismiss for Speedy Trial Violation 

The S1xth Amendment of the United States Constitution provides that "[i]n all 

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .... " 

U.S. Cons!. amend. VL The Sixth Amendment right to a speedy trial is designed to protect 

an individual from the deprivation of his personal liberty tfom the time he is arrested or 

criminally charged through to sentencing. Washington v. Sabina, 475 F.3d 162, 165 (3d 

Cir. 2007). Congress enacted the Speedy Trial Act to give effect to the Sixth Amendment 

right to a speedy trial by setting specified time limits after arraignment or indictment within 

which criminal trials must be commenced. United States v. Rivera Constr. Co., 863 F.2d 

293, 295 (3d Cir. 1988). The Speedy Trial Act provides that "the trial of a defendant ... 

shall commence within seventy days from the filing date (and making public) of the 

information or indictment, or from the date the defendant has appeared before a judicial 

officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. 

§ 316l(c)(l); see also Zedncr v. United States, 547 U.S. 489, 497 (2006). These 

protections offered by the Speedy Trial Act "exceed those of the Sixth Amendment, which 

does not require that a trial commence within a specified time." United States v. Lattany, 

982 F.2d 866,870 n.5 (3d Cir. 1992). 

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Here, Mr. Young argues that the Speedy Trial Act's deadline was not met by a 

substantial margin, and his attorney's decision not to iile a motion to dismiss for this 

violation is but one of many examples of the inadequate legal representation that permeated 

his prosecution. Without providing the details of his calculation, Mr. Young estimates that 

of the 765 days between the return of the indictment and his trial date, there were only 319 

days of excludable time, thereby leaving 446 days subject to Speedy Trial limitations. This 

result is incorrect and not supported by the record. 

In calculating the seventy-day period, Section 316 I(h) of the Act requires the district 

court to exclude certain periods of delay. The district court shall exclude "[a]ny period of 

delay resulting from other proceedings concerning the delendant," including, but not limited 

to, arraignments, pretrial conferences, bail hearings, and the like. See United States v. 

Garrett, 729 1'.2d 705, 709-710 (D.C. Cir. 1983) ("Congress articulated its intent that the 

'other proceedings' language be read broadly"). Section 316l(h)(l)(F) of the Act provides 

that "delay resulting from any pretrial motion, from the filing of the motion through the 

conclusion of the hearing on, or other prompt disposition oC such motion," may be excluded 

from the speedy trial calculation. In addition, a district court may "toll" the Speedy Trial 

Act clock by ordering a continuance, if such continuance serves "the ends of justice." 18 

lJ.S.C. § 316l(h)(8). The district court's reasoning must be set forth "in the record of the 

case, either orally or in writing." Id. These on-the-record findings must indicate that the 

district court weighed the need for a continuance against the countervailing public interest in 

a speedy trial. See Zedner, 547 U.S. at 506-507. If the seventy days are exceeded, 

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however, dismissal of the indictment is mandatory, 18 U.S.C. § 3162(a)(2), but such 

dismissal may be with or without prejudice. I d. 

The indictment that charged Mr. Young was returned on February 2, 2005. See 

Document # 1. lie was arrested, had his initial appearance before a Magistrate Judge, and 

was appointed CJA counsel on February 4, 2005. Sec Document #47. He was arraigned 

on l'ebruary 15,2005. See Document #95. On February 17,2005, Mr. Young was 

released on bail pending trial, and placed on 24-hour electronic monitoring. See Document 

#128. 

The indictment charged eighteen other defendants and was based on over 20,000 

intercepted telephone calls and other voluminous discovery. Thus, on March 21, 2005, I 

granted the government's unopposed motion to declare the case complex, which permitted 

the case to be tried beyond the limitations set by the Speedy Trial Act on the grounds that the 

ends of justice served by the continuance outweighed the best interest of the public and the 

defendants in a speedy trial. See Document #190. By not opposing this finding, Mr. 

Young agreed that the case could not be tried within seventy days. In fact, granting such 

delays has long been recognized as the proper exercise of discretion by the trial court. 

Doggett v. United States, 505 U.S. 647, 656 (1992). Thus, because only 1(>rty-sevcn days 

passed between Mr. Young's arrest and the declaration of the case as complex, there can be 

no violation of the Speedy Trial Act. The record, however, establishes that even less time is 

attributable to speedy trial calculation. 

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Over a month befOre the case was designated complex, co-defendant David Lee filed 

two pretrial motions. See Documents #87 and 88. I entered the first Order for speedy trial 

delay on February 15, 2005. See Document #89. From the filing of those first two pretrial 

motions, there was an unbroken line of pretrial motions filed until the date of trial on April 9, 

2007. Those motions included suppression motions, motions for extensions of time to file 

motions, motions to continue trial, numerous discovery motions, withdrawals and additions 

of counsel for various defendants, status conferences, and several pretrial hearings. On 

March 21, 2005, I granted Mr. Young's "motion for joinder in co-defendants' motions," see 

document # 148, where he sought to obtain whatever "meritorious relief' would be afforded 

his co-defendants as a result of any of their pretrial motions. Sec Document #195. Any 

pretrial motion filed by any defendant tolls the speedy trial clock for all of his co-defendants. 

Sc~ 18 U.S.C. §§ 3161(h)(l)(D) and 3161(h)(6); see also United States v. Erby, 419 Fed. 

Appx. 176, 179 (3d Cir. 2011) (citing United States v. Novak, 715 F.2d 810, 815 (3d Cir. 

1983)). Thus, not a single day of speedy trial time passed from February 14, 2005, the date 

of the first pretrial motion, to April9, 2007, the date of trial, due to pretrial motions, status 

conferences, and defendant motions to continue trial. 

Given the sensitive nature of the prosecution, the amount of defendants charged, the 

number of attorneys involved, and the nature and quantity of the evidence, including over 

20,000 intercepted conversations and voluminous discovery, it was unreasonable to expect 

adequate preparations for pretrial proceedings and for trial itself within the time limits 

established by the Speedy Trial Act. Thus, the ends ofjustice served by granting the 

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government's motion for a continuance outweighed the best interest of the public and the 

defendants in a speedy trial. See United States v. Brooks, 697 F .2d 517, 522 (3d Cir. 1982) 

(noting that inquiry is limited to question of whether district court abused discretion in 

granting continuance). 

furthermore, that Mr. Young did not explicitly consent to any continuances is of no 

import here, contrary to his assertion. Mr. Young filed six pretrial motions, with one of 

those motions requesting an extension oftime to court-ordered filing deadlines. His request 

to join in all of his co-defendants' pretrial motions was also granted. Moreover, it is within 

counsel's purview to determine whether a continuance is in the best interest of his client. 

lbe statute explicitly allows tOr a continuance "at the request of the defendant or his 

counsel." 18 U.S.C. § 3161(h)(7)(A); see also United States v. Mayfield, 361 Fed. Appx. 

425,428 (3d Cir. 2010); United States v. Fields, 39 F.3d 439,443 (3d Cir. 1994) (noting that 

arguments for dismissal based on continuances that defendant's own attorney sought are 

disturbing). Thus, Mr. Young's disagreement with his case's continuances is not 

dispositive. 

Tn conclusion, only ten days are subject to the speedy trial clock) i.e., from the 

defendant's arrest on February 4, 2005, to the filing of the first pretrial motion on February 

14,2005. Mr. Young has established neither prejudice !rom this delay nor a Speedy Trial 

Act violation. Accordingly, his claim that counsel was ineffective for failing to file a 

meritless motion to dismiss must fail. 

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B. Failure to File a Motion to Dismiss for Lack of Speedy Trial 

under the Principles of Barker v. Wingo 

Mr. Young next argues that counsel was ineffective for not filing a motion to dismiss 

based on an alleged speedy trial violation pursuant to the principles of Barker v. Wingo. In 

Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court of the United States established a 

balancing test to determine whether an accused's Sixth Amendment speedy trial rights have 

been violated. Courts must weigh the "[l]ength of delay, the reason for the delay, the 

defendant's assertion of his right, and prejudice to the defendant." !d. at 530. Embodying 

this Sixth Amendment right, the Speedy Trial Act requires that a defendant be brought to 

trial within seventy days from his initial appearance. See 18 U.S.C. § 316l(c). If the trial 

does not commence within seventy days, the Act requires the indictment to be dismissed. 

See 18 U.S.C. § 3162(a)(2). 

As noted by the Court of Appeals for the Third Circuit, "l t]he length of the delay 

figures into the speedy trial analysis twice. First, it is used to determine whether Barker is 

triggered at all. Hakeem v. Beyer, 990 F.2d 750,759-760 (3d Cir. 1993). If the delay is 

long enough to trigger Barker, it is then analyzed as 'one factor among several,' and courts 

should measure the 'extent to which the delay stretches beyond the bare minimum needed to 

trigger judicial examination of the claim."' Conroy v. Leone, 316 Fed. Appx. 140, 143 (3d 

Cir. 2009) (citing Doggett, 505 U.S. at 652). 

The first factor, "length of the dday," is a triggering mechanism: 

Simply to trigger a speedy trial analysis, an accused must 

allege that the interval between accusation and trial has crossed 

the threshold dividing ordinary from "presumptively 

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prt;judicial" delay, since, by definition, he cannot complain 

that the government has denied him a "speedy" trial if it has, in 

fact, prosecuted his case with customary promptness. 

Doggett v. United States, 505 U.S. 647,651-652 (1992). "Presumptive prejudice" when 

used in this context simply "marks the point at which courts deem the delay unreasonable 

enough to trigger the Barker enquiry." Id. at 652, n.l. The "presumptively prejudiciaP' 

delay point is generally found as it approaches one year. Id. 

In this case, the indictment was returned on February 2, 2005. Mr. Young was 

arrested and had his initial appearance on February 4, 2005. Jury selection and trial 

commenced on April 9, 2007. The twenty-six month period of delay !rom the filing of the 

indictment to the beginning of the trial is sufficient to trigger an analysis of the Barker 

factors. 

I. First Factor- Length of Delay 

First, with respect to length of the delay, the Supreme Court has recognized that "the 

delay that can be tolerated for an ordinary street crime is considerably less than for a serious, 

complex conspiracy charge." Barker, 407 U.S. at531. In this case, Mr. Young and his 

seventeen living co-defendants were charged in a complex heroin distribution conspiracy 

case involving tirearms. The government provided voluminous discovery involving twenty 

thousand recorded conversations, which had been transcribed for the defendants and their 

counsel to review. In addition, the defendants filed over sixty pretrial motions. In a 

scenario such as this, a twenty-six month delay from the filing of the charges against Mr. 

Young until the trial date is not excessive in light of the complex nature of this 

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multi-defendant case. See Hakeem v. Beyer, 990 F.2d 750 (3d Cir. 1993) (pretrial 

incarceration of 14 Yz months does not demonstrate per se oppressive pretrial delay); 

Government of Virgin Islands v. Pemberton, 813 F.2d 626 (3d Cir. 1987) (delay of 16 

months did not violate Sixth Amendment right to speedy trial); United States v. King, 483 

F.3d 969,976 (9th Cir. 2007) (delay of nearly two years was not excessive in extraordinarily 

complex case); United States v. Bass, 460 F.3d 830, 837 (6th Cir. 2006) (delay of five years 

did not violate the defendant's Sixth Amendment speedy trial right where case was complex 

and involved 17 defendants). Furthermore, the Third Circuit Court of Appeals noted that 

"the seriousness of a post-accusation delay varies depending on the circumstances, and a 

waiting period during which the defendant is not detained presents fewer concerns than a 

wait accompanied by pretrial incarceration." United States v. Dent, 149 F.3d 180, 184 (3d 

Cir. 1998). Approximately a week after his arraignment in February 2005, Mr. Young was 

released on bail from pretrial detention until his conviction. Thus, this factor does not 

weigh in favor of finding a violation of Mr. Young's speedy trial rights. 

2. Second Factor- Reason for Delay 

The next !'actor, "reason for the delay," also weighs against finding a Sixth 

Amendment violation. The charges in this case were complex and involved multiple 

defendants with voluminous discovery. Plea negotiations resulted in fifteen of the 

defendants entering pleas of guilty. Pretrial motions, joined by Mr. Young, required 

hearings, findings of fact, and memoranda. It was reasonable to conclude that this case 

required significant preparation by counsel to represent effectively any defendant who 

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proceeded to trial. The charges in this case were serious and carried significant penalties. 

It was crucial that the defendants had adequate time to prepare a proper defense. Thus, the 

reason for the delay in this complex, multi-defendant case was more than justified, and 

weighs against finding a violation of Mr. Young's constitutional right to a speedy trial. 

3. Third Factor- Defendant's Assertion ofllis Right 

The third factor to consider is whether the defendant asserted his right to a speedy 

trial. Nothing in the record supports a finding that Mr. Young asserted his right to a speedy 

trial. Neither he nor his co-defendants objected to any continuance of trial or to any 

co-defendant's pretrial motion. Instead, Mr. Young joined his co-defendants' pretrial 

motions and thus became subject to their ensuing delays. This factor also weighs against a 

finding of a speedy trial violation. 

4. Fourth Factor- Prejudice to the Defendant 

The final Barker factor is prejudice to the defendant. There arc three types of 

prejudice that can result from a pretrial delay: (I) oppressive pretrial incarceration; (2) the 

accused's anxiety and concern over the outcome of the litigation; and (3) impairment of the 

defense. Barker, 407 U.S. at 532. Of these, the most serious is the last, because the 

inability of a defendant adequately to prepare his case skews the fairness of the entire system. 

!d. "With respect to all its various types, the burden of showing prejudice lies with the 

individual claiming the violation .... " Hakeem, 990 1'.2d at 760. 

Mr. Young has not demonstrated any prejudice as a result of the delay. First, Mr. 

Young was not incarcerated pending trial. He was released on bail on February 17, 2005, 

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and remained so until his conviction, subject to electronic monitoring at the horne of his 

daughter. On August 9, 2006, his conditions of release were further modified for health 

reasons to include permission to take a one-hour walk each day. See Document #379. 

Second, while Mr. Young contends that he was in poor health during the twenty-six month 

delay, there is nothing to show that the delay was responsible for his advanced age and poor 

health. Mr. Young attached the un-notarized "Atlirmation ofGarncla Young" as an exhibit 

to his § 2255 motion. Miss Young is Mr. Young's daughter, and submits that her father had 

been suffering from severe asthma for many years which caused his early retirement in 1996. 

See Exhibit 2. He had been receiving disability and social security benefits as a result of his 

medical condition. Id. Miss Young also noticed that Mr. Young's asthma worsened, and 

she became concerned about his emotional status during the pretrial period. !d. While Mr. 

Young sutl"ered from asthma and other health problems prior to his indictment, there is no 

proof that the progression of his infirmities can be attributed to the delay in trial. 

Finally, Mr. Young cannot attribute the delay to impairing his defense. He attempts 

to do so, however, mentioning the death, disappearance, or faulty memory of defense 

witnesses as possible prejudice. He fails to identify prejudice with respect to a single 

defense witness, let alone one who died, disappeared, or forgot relevant facts in his case. 

Mr. Young identified Marlon Gocking as an important witness for his defense who was 

deported in 2006 by the government. He points to no exculpatory evidence that Mr. 

Gocking could have provided. The Third Circuit has held that when a petitioner fails ""to set 

forth facts to support his contention" an evidentiary hearing is not required. Zettlemoyer v. 

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Fulcomer, 923 F.2d 284,298,300-301 (3d Cir. 1991). In fact, Mr. Gocking was a 

confidential informant who obtained a consensually recorded conversation with Teddy 

Young. That recording was admitted into evidence as Teddy Young's statement against his 

own interest, not for the tmth of what Mr. Gocking stated. Mr. Young was not a party to 

that conversation and he provided no proffer as to how Mr. Gocking could have been a 

defense witness on his behalf. See Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) 

(where petitioner tails to allege what a witness would have been able to say that would have 

been of ht:lp to him, an evidentiary hearing is not mandated). 

Mr. Young also identities Frank Robinson, a co-defendant, who died prior to 

indictment. Mr. Robinson was known throughout the investigation as the "tester" of the 

heroin for the organization. Being a co-defendant, Mr. Robinson could not have been a 

defense witness for Mr. Young. Mr. Young does not prolfer what exculpatory evidence Mr. 

Robinson could have provided if not for the delay. As an exhibit to his§ 2255 motion, 

however, Mr. Young attached the un-notarized "Proffered Testimony of Theodore Young, 

Sr., in Support ofhis Motion pursuant to 28 U.S.C. § 2255." See Exhibit I. Mr. Young 

indicates that if he would have been permitted to testifY, he would have told the jury that it 

was Mr. Robinson who first told him that Mr. Young's two housemates "were hanging out 

with a 'wrong crowd,' that they were heavily involved with drugs, and that I should be very 

careful for letting them stay in my house." I d. Mr. Young adds that he asked the 

gentlemen to leave based on Mr. Robinson's recommendation, and that caused hard feelings 

which prompted the two co-defendants to testifY falsely against him. !d. Mr. Young's 

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statements of prejudice are conclusory and without merit. 

On balance, I conclude that the Barker factors do not demonstrate a violation of Mr. 

Young's Sixth Amendment right to a speedy trial. Accordingly, a claim ofincffectiveness 

of counsel for failing to file a meritless motion to dismiss based on a speedy trial violation 

must also rail. 

C. During Voir Dire 

Mr. Young next argues that his attorney was constitutionally ineffective during voir 

dire when the attorney refused to allow Mr. Young inside the courtroom during jury 

selection. II is attorney allegedly told him that jury selection was just a formality, and that 

there was no need for Mr. Young to attend. The atlorney further allegedly told Mr. Young 

that he would have to be in the courthouse in case the trial began immediately following voir 

dire. These statements are belied by the record. 

first, L assume that Mr. Young is referring to not being present in the Ceremonial 

Courtroom at the drawing ofjury panel members on the morning of April 9, 2007. While it 

was his right to attend that proceeding, most detemlants waive that right in this district, as did 

Mr. Young. Mr. Young signed a "Waiver of Presence of Court Stenographer or Electronic 

Sound Recording Operator and Defendants at Drawing of Jury Panel Members in Criminal 

Trials." This document was filed with the Clerk of Court on AprillO, 2007. See 

Document #487. Counsel for the three remaining defendants, however, were present at the 

drawing of jury panel members. 

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Second, if Mr. Young is referring to not being present in the courtroom during Jury 

Selection, he is mistaken. Not only do I remember his presence during voir dire, but the 

transcript of that proceeding confirms his presence. See N.T. 4/09/07. Mr. Young's 

complaint of the lack of a record of his attorney exercising peremptory strikes is also 

baseless. Rule 24(b)(2) of the Federal Rules of Criminal Procedure provides that the 

government and the defense are given a set amount of peremptory strikes after those panel 

members with extraordinary hardships are excused for cause. The government receives six 

peremptory challenges in choosing regular jurors, and two additional strikes for four 

alternates. The three defendants received a total of ten peremptory challenges in choosing 

regular jurors, and two additional strikes for four alternates. See FED.R.CRIM.P. 24(c)(4). 

Counsel exercised those strikes in an orderly fashion until the strikes were exhausted and the 

jury was chosen. Counsel for the three defendants made their selections as a group and 

there is never a record of an individual attorney's selection. His claim that his attorney was 

ineffective for failing to exercise peremptory challenges is meritless. 

Accordingly, Mr. Young has failed to demonstrate that counsel was ineffective during 

the voir dire proceedings in this case. 

D. During Trial 

1. Failure to Object to Government's Opening Statement 

Next, Mr. Young complains that the government's opening statement to the jury was 

fabricated in Lhat there were no intercepted conversations in which the defendant explicitly used 

the term "organization" or "cut house workers" or "heroin-cutting process." Mr. Young quotes 

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the following paragraph from the government's opening which stands out to him as 

exceptionally troubling: 

You are going to hear Theodore Young, Sr. and Teddy 

discussing aspects oftheir organization. You are going to 

hear Theodore Young, Sr. complaining about the cut 

house workers, they were Scott brothers. You arc going to 

hear Theodore Young, Sr. urging Teddy Young to get on 

top of the cut house workers, to get them working earlier, 

to get them working faster because you need to put 

massive amounts of heroin. 

See N.T. 4110/07 at 121-122. Mr. Young also complains that the government told the jury that 

he was observed attempting to dispose of bundles of heroin during the search of his home. lie 

argues that his attorney's failure to object to these allegations supports his claim of 

ineffectiveness of counsel. 

An opening statement presented to a jury is limited in scope to a general statement of 

facts which are intended or expected to be proved and is designed to generally outline or 

foreshadow the testimony that follows. United States v. DeRosa, 548 F.2d 464,470-471 (3d 

Cir. 1977). Thus, the government's opening statement is an overview of what the evidence will 

show. Even before opening statements began, however, I instructed the jury that opening 

statements were not evidence, and were not to be considered by them as such: 

First, the government's attorney will make an opening 

statement outlining the government's case. Immediately 

therea1tcr, defense counsel may make an opening 

statement outlining the defense, or the statement may be 

deferred by the defendant until later in this case. 

The opening statements are not evidence. They are not 

argument to you about what you should do in this case. 

They are simply outlines of what you can expect to sec 

during the course of trial. 

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SeeN .T. 07110/07 at 99. After some further preliminary instructions to the jury, the 

government began its opening statement. As predicted in its opening statement, the 

government produced at trial evidence of eight members of the Young Heroin Organization who 

established that it was a drug organization, and that they used a cut house. These witnesses also 

explained the heroin-cutting process. In Exhibit 1 of his motion, Mr. Young explains that he 

would have testified to the jury that during the search of his residence, when he was throwing the 

bundles of heroin out of the window, he 

"acted irrationally and out of fear but not because I was guilty of 

illegal possession of the drugs. I would testify that, although there 

was no justification for my actions, I would explain that, in the 

past, in the spring of 1985, I was at my brother Harold's house on 

Osage Avenue in West Philadelphia when the police bombed the 

residence of the group known as 'MOVE' and incinerated the 

whole block, including my brother's house. I would testify that 1 

do not trust police and my horrific experience stands in my 

memory quite vividly." 

See Exhibit I at 6. Whatever explanation Mr. Young could have given for throwing the bundles 

of heroin out of the window, the fact remains that he was disposing ofthem during the lawful 

search of his residence. The jury was provided all of the relevant facts ofthc investigation, the 

jury made credibility determinations where necessary, and ultimately the jury found Mr. Young 

guilty of all three counts charged against him. Accordingly, I find that there was nothing 

objectionable about the government's opening statement to the jury, and counsel for Mr. Young 

could not have been ineffective lOr failing to object. 

2. Denial of Right to Testify 

Next, Mr. Young argues that his attorney was constitutionally ineffective because he 

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instructed Mr. Young not to testify and did not call him to testify in his own defense. Mr. 

Young had no reason to distrust his attorney because Mr. Young had "had no prior criminal 

or civil trial experience to know on [his] own about[ his J right to testify.'" See Exhibit I. 

Mr. Young <.:ontends that he was not aware of this fundamental right to testify, or he would 

have lestilied on his own behalf. ld. 

A defendant has a constitutional right to testify in his own defense, which cannot be 

taken away hy counsel. See Rock v. Arkansas, 483 U.S. 44,51 (1987); United States v. 

I3atista, 483 F.3d 193, 197 (3d Cir. 2007). When a habeas petitioner claims his counsel was 

ineffective by denying his right to testify, the two-part Strickland test applies. Palmer v. 

Hendricks, 592 F.3d 386, 394 (3d Cir. 2010). Before determining whether Mr. Young's 

trial counsel· s performance was deficient, I will determine whether Mr. Young has shown 

that he was prejudiced by not being able to testify on his own behalf. See Strickland, 466 

U.S. at 697 (a court need not determine whether counsel's performance was deficient before 

examining the prejudice suffered). 

Mr. Young argues that, if permitted to testily, he would have told the jury that three 

of the co-del'endants who testified against him, i.e., Mark Hightower, Steven Scott, and 

Ronnell Scott, did so falsely because they were holding a "grudge" against him for 

throwing them out of his "house where they had lived rent-free for many years." See 

Exhibit 1. Mr. Young would have also told the jury that his own grandson and 

co-defendant, Rafiq Young, testified falsely against Mr. Young because Mr. Young caught 

Rafiq stealing money from Mr. Young who then cut Raliq out of his life. This allegedly 

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angered Rafiq who also began to hold a "grudge" against Mr. Young, prompting Ratiq to 

testify against Mr. Young. !d. 

None of this proposed testimony is sufficient to establish prejudice, that is, that the 

alleged errors were "sufficiently serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable." Strickland, 466 U.S. at 687. The jury heard over 150 recorded 

telephone conversations introduced by the government. At least twenty of those 

conversations involved Mr. Young in which he discussed aspects of the heroin business with 

his son, Teddy. Eight of his co-conspirators testified at trial and all of them implicated Mr. 

Young. Bundles of heroin, measuring cups, spoons, packaging materials, rubber bands, 

nose masks, stamping kits, and items with heroin residue were recovered from, inter alia, 

Mr. Young's residence at 7519 Woolston Street, Philadelphia. The search of his residence 

also recovered firearms. Law enforcement agents observed Mr. Young throwing bundles of 

a substance out of the window which tested positive for heroin. If Mr. Young had testified 

at trial, nothing he could have said would have overcome the overwhelming evidence against 

him. The record defeats his claim that his testimony would have made any difference. 

Any proposed testimony would not have been suflicient to show "that the decision reached 

would reasonably likely have been different absent the errors. Strickland, 466 U.S. at 696. 

Thus, Mr. Young has failed to demonstrate that he was prejudiced by his inability to testify. 

He has not shown that there was a reasonable probability that the jury would have accepted 

his defense that his co-conspirators were holding a grudge against him and therefore testified 

falsely against him. 

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Because Mr. Young failed to show prejudice, there is no need for this court to order an 

evidentiary hearing regarding whether Mr. Young's counsel prevented him from testifying. 

Such bald assertions and cunclusory allegations do not afford a sufficient ground for an 

evidentiary hearing on a habeas petition. See Campbell v. Burress, 515 F.3d 172, 184 (3d 

Cir. 2008). Moreover, there is no evidence in the record to corroborate Mr. Young's claim 

that he was denied the right to testify. Mr. Young did not at any time tell the court he 

desired to testify or that his attorney was actively preventing him from testifying, and he did 

not testify at trial. A defendant's "bare bones assertion" that he was denied his right to 

testify is insufficient to require a hearing. Underwood v. Clark, 939 F.2d 473,476 (7th Cir. 

1991); see also D'Amario v. United States, 403 F. Supp. 2d 361,371 (D.N.J. 2005) (same). 

More specific evidence is required. Underwood, 939 F.2d at 476 (noting "some 

substantiation [ofthe defendant's claim] is necessary, such as an affidavit from the lawyer 

who allegedly forbade his client to testily"). 

3. Cumulative Effect of Counsel's Acts and Omissions 

Finally, Mr. Young argues that each of these errors committed by his attorney during 

trial, viewed in isolation, was sufficiently prejudicial to warrant relief under Strickland 

However, the law requires, he insists, that the court consider the cumulative elTect of all 

those errors. See Beryman v. Morton, 100 F.3d 1089, 1097-1102 (3d Cir. 1996). 

There is a strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance. Strickland, 466 U.S. at 689. Mr. Young's attorney 

cannot be held to be ineffective for having failed to raise meritless claims. Further, as the 

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Supreme Court of the United States has held, "judicial scrutiny of counsel's performance 

must be highly deferential. It is all too tempting for a defendant to second guess counsel's 

assistance after conviction or adverse sentence." Id. at 689. Because I have found no 

deficiencies in the performance of Mr. Young's attorney, there can be no cumulative 

ineffectiveness as Mr. Young suggests. Accordingly, I will deny Mr. Young's motion to 

vacate, set aside, or correct his conviction and sentence brought pursuant to 28 U.S.C. § 

2255. 

An appropriate Order follows. 

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